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Flynn v. Holder | 684 F.3d 852 (2012)

The Ninth Circuit considered how a statute applied to a medical procedure developed after the statute was enacted, in Flynn versus Holder.

Bone marrow is the soft fatty material found in the center of long bones. Marrow produces hematopoietic stem cells that become white blood cells, red blood cells, and platelets. Marrow transplants can save patients suffering from diseases like leukemia, a cancer of blood or marrow. Chemotherapy destroys the cancerous cells, then patients receive donated marrow that produces blood cells. But unlike blood, which only has eight different types, marrow comes in millions of types. So, finding a match can be difficult. Patients have died waiting for matching marrow.

Traditionally, marrow was extracted from donors’ bones using long, thick needles to suck out the marrow, a procedure called aspiration. Aspiration was a painful surgical procedure performed under anesthesia and carried typical surgical risks.

The nineteen eighty-four National Organ Transplant Act defined bone marrow as a human organ and prohibited organ donors from receiving compensation for their donations. But blood wasn’t defined as a human organ, so the Act didn’t prevent blood donors from being paid for their donations.

Some of the marrow’s stem cells flow into the bloodstream, and a new procedure, called peripheral blood stem cell apheresis requires only that the donor sit for some hours as blood is drawn and passed through a machine that collects the stem cells. It’s like blood donation but takes longer.

Doreen Flynn and a group of plaintiffs, including parents of sick children needing apheresis and doctors who have lost patients while waiting for matching marrow donors, wanted to improve their chances of finding matching donors by offering to pay or offer other compensation to potential donors. They sued United States Attorney General Eric Holder, arguing that apheresis stem cell harvesting was substantially identical to blood donation, so the act’s unequal treatment of the different procedures violated the Equal Protection Clause. The district court dismissed the complaint for failure to state a claim for which relief could be granted, and Flynn appealed to the Ninth Circuit.

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